FCC Rules on Secret Recordings

In May 2019, the Federal Circuit Court of Australia decided an application to exclude video recordings made in secret from evidence in a parenting matter. The secret recordings had been made by the mother in the matter when the father was attending her home for hand overs of the children. There were also two audio recordings that the mother had secretly taken of conversations between the father and the children, by way of an application installed on the children’s iPods. The recordings were made without the father’s knowledge.

The father’s application

The father applied to have the secret recordings excluded from evidence under Sections 135 and 138 of the Evidence Act. Under Section 135, the court has a general discretion to exclude evidence whose probative value is substantially outweighed by its prejudicial effect, its ability to mislead or confuse, or its potential to waste the court’s time. Under Section 138, evidence must be excluded if it was obtained improperly or illegally unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence improperly obtained.

Were the secret recordings made improperly?

The court found that it was not improper for the mother to make secret recordings of the hand overs as she was motivated by a genuine concern for her safety and in protecting her children from being exposed to conflict. The mother was at the time concerned about the father’s coercive and controlling behaviour and his past episodes of violence. She had made allegations of family violence against him in the proceeding and was also in the process of applying for an intervention order.  Recording the hand overs did not violate any Australian laws.

However, the court found that it was improper for the mother to secretly record private conversations between the father and the children. This violated the children’s right to privacy during conversations with their father. This also breached the Listening and Surveillance Devices Act (now repealed, but in force at the time the recordings were made).

Admission of recordings

The court found that the mother was acting in protection of her lawful interests when she video recorded the hand overs. She was seeking to demonstrate that she had been the victim of family violence in order to obtain an intervention order. The father’s behaviour as captured in the secret recordings was consistent with the mother’s allegations about his conduct. Her actions were justified in the circumstances.

However, the court found differently in respect of the mother’s secret recordings of the conversations between the father and the children. It found that children have the right to private communication with their parents and that the relationship between parent and child could be compromised if this was not upheld. Despite the fact that the audio recordings were of probative value, the court found that they should be excluded from evidence due to the manner in which they were obtained.

The father’s application to exclude the video recordings from evidence was refused but his application to exclude the audio recordings was granted.

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